Category Archives: Constitution

Another “Great Migration”?

It’s a truism that reasonable policymaking requires a familiarity with history, and the ability to apply the lessons of history to current issues. That’s one of the many reasons that the current Rightwing efforts to label a major part of American history as (that dreaded) “CRT”, and dispense with its study, is so misguided.

There are lessons to be learned–and legislators in several states (including Indiana) rather clearly haven’t learned them.

Even before the current efforts to eliminate America’s mistreatment of Black and Indigenous people from school textbooks, those texts glossed over the “Great Migration.” That’s a shame, because the legal and social realities that drove Black Southerners North should warn Red state legislators about the likely consequences of imposing disabilities on women.

A recent essay drew that parallel:

As soon as Black Americans had the ability and resources to leave the Deep South after the Civil War, they left…. More than six million Black Americans moved from the former Confederate states to the Civil War-era Union states between 1910 and 1970….

Jim Crow laws were America’s shameful version of apartheid, resulting in racial inequality and state-sanctioned terror.  Jim Crow laws restricted every aspect of life for Black Americans, making it nearly impossible for Blacks, or for that matter white Americans, to reach their human potential. But while whites suffered from the contagious disease of racism, they also benefited at the expense of their Black neighbors.

The same states that practiced the most pernicious forms of Jim Crow are also the states that today restrict the health care rights of women. The lesson of the Great Migration of Black Americans is that people can and arguably should vote with their feet.  Women — by the millions — must be at least contemplating leaving these states and moving to states where their rights are duly respected.

As of this week, 15 states have passed total bans on abortion since the Supreme Court’s overturning of the Roe v. Wade decision. These 15 states do not include Georgia, which recently passed a ban after six weeks, but they do include Texas, Mississippi, Alabama, Arkansas, Tennessee, Kentucky, West Virginia, Missouri, Oklahoma, Wisconsin, South Dakota, North Dakota, Idaho and Nebraska. The female population in these states is approximately 60 million.

The essay was written by Fred McKinney, a co-founder of BJM Solutions. BJM is described as “an economic consulting firm that conducts public and private research since 1999.” McKinney is also the emeritus director of the Peoples Center for Innovation and Entrepreneurship at Quinnipiac University.

The essay echoed an argument I’ve made on this blog and in the book I recently co-authored on women’s progress: women will choose to attend universities, take jobs and raise families in states that respect their fundamental rights.

Legislatures passing these retrograde laws have failed to appreciate their inevitably negative economic impact.  Businesses understand that women’s choices–where to attend a university, where to accept a job– aren’t abstractions. They are a reality, and  employers  are highly likely to factor that reality into their own location decisions–decisions that are already heavily influenced by the availability of a talented and skilled workforce.

It won’t just be women who exercise their choice to settle in fairer states; there are plenty of men who share women’s political and medical concerns. And as the essay points out, the people leaving backward and restrictive states will largely be those who possess the greatest drive and skills, those who can most easily relocate.

There are also those recent travel advisories issued by the NAACP, Equality Florida, and the League of Latin American Citizens–precursors of other advisories affecting tourism. The economies of a number of states, not just Florida, are heavily dependent on tourism.

These realities will depress economic conditions in Red states like Indiana–an obvious consequence that our truly terrible and unrepresentative legislators have failed to comprehend.

The last Great Migration had an enormous impact on American society. As the Smithsonian Magazine explains:

By leaving, they would change the course of their lives and those of their children. They would become Richard Wright the novelist instead of Richard Wright the sharecropper. They would become John Coltrane, jazz musician instead of tailor; Bill Russell, NBA pioneer instead of paper mill worker; Zora Neale Hurston, beloved folklorist instead of maidservant. The children of the Great Migration would reshape professions that, had their families not left, may never have been open to them, from sports and music to literature and art: Miles Davis, Ralph Ellison, Toni Morrison, August Wilson, Jacob Lawrence, Diana Ross, Tupac Shakur, Prince, Michael Jackson, Shonda Rhimes, Venus and Serena Williams and countless others.

Women’s “great migration” is next.

Red states’ continued social and economic decline can be traced to legislatures that refuse to learn the lessons of history.

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Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court. 

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.”  “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.” 

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures. 

 Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……  

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Who Decides?

I used to tell my students that the Bill of Rights, read as an organic whole, answers a deceptively simple question: who decides? Not “what decision should be made” but who gets to make it? Who chooses the book you read, the God you do–or do not–worship, the person you marry?

The Bill of Rights draws a line between decisions government can properly make and decisions that, in a free society, must be left to the individual. One of the reasons the Dobbs decision was so shocking was that –suddenly–the government was authorized to enter a zone of intimacy from which it had long been banned; as I have often remarked, the question was never “should abortion be legal or illegal”? The question was (and is) who should decide that question in an individual situation?

America’s raging culture war tends to focus on the extent to which our individual rights are protected from government interference. MAGA Republicans insist that government has the right–the duty!–to determine everything from your reading materials to your reproductive decisions. As many former Republicans have noted, the “war on woke” is really a war on the Bill of Rights, and a sharp departure from what used to be GOP orthodoxy.

This deviation from that past Republican orthodoxy isn’t limited to the usurpation of individual life decisions. The party has also jettisoned its former support for free markets, as Dana Milbank recently documented.

Can you remember when Republicans still believed in the free market?
It was sometime before Donald Trump started routine attacks on the “globalists” of Goldman Sachs and the leaders of large U.S. corporations; before Florida Gov. Ron DeSantis used tax policy to attack the Walt Disney Co. because it dared to disagree with his “don’t say gay” legislation; before congressional Republicans harassed social media companies and book publishers over alleged “censorship” of their views; before they threatened Delta Air Lines, United Airlines and Major League Baseball over their support for voting rights; before they vowed to use federal resources to retaliate against the U.S. Chamber of Commerce for backing a few Democrats; before Republican governors enacted laws overriding private employers’ coronavirus vaccination policies; and before GOP-led states moved to disrupt interstate commerce to block abortion access and morning-after pills.

This week brought the latest evidence that the former party of laissez-faire capitalism has reimagined itself in the image of a Soviet State Planning Committee. Republican lawmakers are now telling investors which businesses they can and can’t invest in — and which investment criteria they will be permitted to consider.

Republicans have taken the culture war to business, in efforts to prevent asset managers from considering “environmental, social and governance” criteria, or ESG, when making their investments. Milbank quoted Utah Attorney General Sean Reyes’ assertion that there is a “conspiracy” of ESG-minded investors.

He was particularly worried that “asset managers who collectively own significant percentages of utilities’ stock are improperly influencing the operations of those utilities.”

Imagine that! The shareholders who own a company are trying to influence its operations! Will nobody rid us of this capitalist menace?

Twenty-five Red State attorneys general have sued to block a federal regulation that allows retirement-plan investors to consider ESG standards. The rule doesn’t mandate that investors do so. It merely gives them the option.

As one Democratic critic of this interference with business decisions points out, these rules block asset managers from

considering whether a car company “is aligned with market expectations and preparing for the shift to electric vehicles,” whether a pharmaceutical company “has exposure to massive lawsuits because of its role in the opioid epidemic” or whether “health-care companies understaff their operations and jeopardize the safety of patients.. ..ESG is simply additional information that investment professionals use to assess risk and return prospects.”

In our current “through the looking-glass” world, Democrats are defending the free market against Republican support for a planned economy that mandates what businesses have to invest in. Shades of Soviet central planning!

When I first became politically active, I was drawn to principles espoused by the then-Republican Party, especially its recognition that individual liberty requires limiting the power of the state. There were and are good faith arguments about where the line should be drawn in a variety of situations (and widespread misunderstandings of what “limited” government means. “Limited” is not the equivalent of “small”–a limited government respects limits on its authority, not its size.)

A government that can dictate your prayers, your reading materials, your reproductive decisions and your business’s approach to investment isn’t just unAmerican–it’s heading toward Soviet-style totalitarianism or Taliban-style theocracy.

In a genuinely free society, the decisions citizens and businesses make are far less important than who has the right to make them.

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Guess What’s “Inappropriate”

The rule of law.

Many pundits–including yours truly–throw that term around, assuming readers understand its elements. I think most Americans do recognize one of those elements–the principle that no one is above the law, that the rules apply to everyone, very much including Presidents and lawmakers.

There are other principles that are less-well understood, however, and one of them is specificity. If laws are to be obeyed, they must be explicit. They must describe the behaviors being prohibited (or required) clearly, in terms that allow citizens to fully understand them. When courts strike down laws for being unconstitutional, it is often because those measures have been found to be unconstitutionally vague.

That required specificity is among the many, many things that far too many legislators ignore. Texas comes immediately to mind, but the following example is from Ron DeSantis’ Florida–a state that is beginning to resemble Viktor Orban’s Hungary.

As Daily Kos — among others–recently reported:

There are more than 500 entries for Florida in PEN America’s ever-expanding list of books banned in American schools. These include what should be obviously innocuous titles like the “Zen Shorts” series by Jon Muth, which are some of the best children’s books available to parents and teachers. This effort to remove books about Black and LGBTQ+ people and characters from schools and libraries is a part of a larger effort to sanitize our country’s history. Like almost all efforts that pass for conservative “policies” these days, citizens of all ages are widely opposed to the bans….

DeSantis and his team of book-banners also highlighted the need to criminally punish teachers or librarians who give out books people like DeSantis deem pornographic. Mind you, our federal government (and Florida itself) already has laws outlining what is and is not considered pornographic. And there are also laws that prohibit books, images, and videos that sexualize minors…

Judd Legum over at Popular Information has gotten his hands on some of the Florida books that have been banned and the stated reasons they were banned. You would be hard-pressed to figure out how the previous statements above have any bearing on the decisions being made about libraries in the Sunshine State.

The article links to PEN’s report on the multitude of books that have been removed from Florida classrooms and it’s as jaw-dropping as you might imagine. The extensive nature of the list is an artifact of an unconstitutionally vague statute–a truly excellent example of a law that violates the specificity required by the rule of law. That’s because, In Florida, while there may be a few books deemed “pornographic,” most of the books that have been banned are attacked under the “how vague can you get” term “inappropriate.”

Rather obviously, my definition of “inappropriate” and yours may differ substantially.

The linked article suggests that the DeSantis Administration finds books depicting racism in negative terms to be “inappropriate.” For example, the Florida Department of Education announced that it rejected 35% of social studies textbooks submitted to them. One of those–a book for 6th to 8th graders– was evidently rejected for containing the following section:

“New Calls for Social Justice

During the 2000s, one effect of an increase in the use or mobile devices and social media was the spread of images of police violence, sometimes deadly, against Black Americans. The deaths of Black Americans outraged many Americans and led to a crowing awareness of systemic racism that permeated the broader society.

In 2013, a new social and political movement called Black Lives Matter formed to protest violence against Black Americans. The movement called for an end to systemic racism and white supremacy.”

Lest anti-Semites feel neglected by Florida lawmakers’ focus on protecting racism, the state has also rejected education about the Holocaust, finding it “woke.”

Florida’s state education department rejected two new Holocaust-focused textbooks for classroom use, while forcing at least one other textbook to alter a passage about the Hebrew Bible in order to meet state approval…

“Modern Genocides” was rejected in part for its discussion of “special topics” prohibited by the state. The list of such topics includes terms such as “social justice” and “critical race theory,”a phrase that traditionally concerns a method of legal analysis but that Republicans have used pejoratively to refer to discussion of systemic racism in the United States. The department did not clarify which prohibited “special topics” the book included.

Florida evidently considers accurate history and support for civic equality as (equally-vague) “woke” and thus “inappropriate.”

Maybe we should get rid of speed limits and just prohibit “driving too fast.” We can trust the police to decide who’s speeding–right?

Just like we can trust Florida’s current government to decide what’s “inappropriate.”

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Q And A

Last Sunday, as those of you who read my posted “sermon” will recall, I spoke to the Danville Unitarians. At the conclusion of my talk, I engaged in a brief question-and-answer session, and a couple of those questions echoed comments sometimes posted here.

For example, one parishioner asked what one citizen can do about our unrepresentative  legislature, given the reality of Indiana’s extreme gerrymandering. It’s a reasonable question, given the lack of mechanisms available–we lack a citizens’ initiative or referendum, and a friend of mine who cares a lot about the issue (and not so incidentally spent several years as a judge on Indiana’s Supreme Court) tells me he sees nothing in the state constitution that might be used to overturn partisan redistricting.

My only answer rests on the fact that the most nefarious result of gerrymandering is vote suppression. Hoosiers who live in House and Senate districts considered “safe” for one party or another (and yes, there are a few safe Democratic districts, thanks to the mechanism known as “packing,” aka cramming as many voters of the “other party” into as few districts as possible) tend to stay home. Why bother to vote, if the result is foreordained? 

The voters who stay home are overwhelmingly those of the “loser” party. That’s especially the case in places where the loser party hasn’t bothered to field a candidate.

But here’s the dirty little secret: in a number of those “safe” districts, if there was a massive turnout, the “losers” could win!  That’s because, in a number of Indiana’s rural districts, Democrats have failed to go to the polls.

There are two reasons for that.

Reason one: When an acquaintance of mine who ran in one such district went door-to-door, she was astonished by the number of people who expressed surprise that there were Democrats living in the area. Years of being told that they were rare exceptions had beaten them down, and added to the belief that they were rare–and powerless.

Reason two: as another member of the congregation noted, the suburban/bedroom communities around Indianapolis and other urban areas have been growing significantly–and much of that growth comes from young, educated people looking for less-expensive housing and able to work remotely at least part of the time. Given the significant political divide between people with a college degree and those without, it’s fair to predict that many–if not most– of those new residents have more progressive political orientations.

It’s obviously impossible to know how politically significant those two observations are unless many more people vote. So my answer to the young woman who asked that question was: do everything you can to get out the vote. We know is that those engaging in the redistricting process rely upon prior years’ turnout when drawing their district lines. If longtime residents of the “other” party who haven’t previously gone to the polls were suddenly to do so–and if newcomers with different values and concerns join them–a lot of those presumably “safe” districts will no longer be so safe.

There was another question that struck me as important. A young man followed up the previous question with what he characterized as an “expanded version.” What could congregations do? Not as individuals, but as congregations.

It was a great question, because one of the most annoying aspects of our terrible legislature is the serene belief of far too many of its members that God is on their side. (Their God hates the same people they do…) When someone like me–Jewish, atheist, civil libertarian– comes to testify, it’s easy to ignore that testimony. 

But when a church lobbies or testifies, it’s a lot harder to dismiss out of hand.

We sometimes forget (as our legislature clearly does) that not all religions–or even all Christian denominations– endorse the punitive doctrines of the fundamentalists who control today’s MAGA Republicans. There are enormous differences–not just between religions, but between denominations of the Christianity that dominates American culture. It’s past time for  the many congregations that preach love and acceptance, embrace modernity and equality and care about the “least of us,” to speak up at the Indiana Statehouse.

Loudly.

The day before yesterday, I posted about a Christian legislator who had the guts to challenge a performative Christian lawmaker on biblical grounds. We need more people like that authentically religious legislator, and we especially need more congregations willing to challenge hateful and discriminatory measures at the Indiana Statehouse.

Those are the challenges to which our pathetic lawmakers should have to respond. Not to the “rule of law”  and “fair play” people like yours truly, but to the co-religionists they  inaccurately claim to represent.

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